Court acquits elderly man who grows and smokes marijuana to treat prostate cancer.

Do Conjur - A 70-year-old man, arrested for possessing seeds, dried leaves, and pressed marijuana, was acquitted by Judge Luana Cavalcante de Freitas of the Single Court of Quebrangulo (AL), after it was proven that the substances were for his own consumption. The elderly man suffers from prostate cancer and began using the drug to reduce the effects of the disease, but without a prescription.

In April 2015, the Alagoas Military Police received a report that marijuana plants were being grown at the elderly man's home. Upon searching the premises, they found 42 grams of marijuana seeds, 42 grams of pressed marijuana, and 128 grams of dried marijuana leaves.

The elderly man's defense argued that the procedure established in the Drug Law (11.343/2006) was disregarded. Article 28 of the law stipulates that "whoever acquires, keeps, stores, transports or carries with them, for personal consumption, drugs without authorization or in disagreement with legal or regulatory determination" will be warned about the effects of the substance, will perform community service and will comply with an educational measure.

The elderly man's defense also argued that there is no toxicology report in the case file and requested that the conduct be considered atypical. In its statement, the Public Prosecutor's Office of Alagoas requested the reclassification of the crime from drug trafficking to possession of drugs for personal use.

To acquit the defendant, the judge cited the principle of harm, according to which conduct can only be considered a crime when it fits the criminal type, from a formal point of view (adequacy of the fact to the norm), and demonstrates material relevance. "That is, it is conduct that causes an intolerable injury or threat of injury to the protected legal interest," she explained.

According to Luana de Freitas, the principle of harm is directly linked to that of otherness, which defines as criminal conduct only that which harms or threatens the legal rights of a third party. "If the conduct does not extend beyond the individual sphere, the State cannot criminalize the conduct. It is because of this principle that there is no punishment for attempted suicide or self-harm," the judge explained.

Studies and research

The judge highlighted in her decision that the issue is controversial and that numerous scientific studies prove that marijuana has a lower degree of harmfulness and dependence than alcohol and cigarettes.

"It does not seem that one can conclude that the abusive use of marijuana can cause harm to health, as is the case, incidentally, with any substance, and not only with narcotics, such as sugar," said the judge, adding that many other studies have proven that the drug in question has therapeutic benefits that help reduce the effects of diseases such as cancer, AIDS, glaucoma, multiple sclerosis, and epilepsy.

He further highlighted that countries such as Portugal, Spain, Canada, Uruguay, the Netherlands, Israel, as well as some US states, are legalizing the medicinal and recreational use of marijuana. "Since they take into account that the benefits outweigh the harms and its prohibition contributes to the increase in drug trafficking."

Luana de Freitas also responded to arguments that, in cases like this, the violated legal right would be public health: "It sounds inconsistent, since there are legal drugs that kill thousands a year, requiring an enormous expenditure of public money because of this. Furthermore, criminalizing drug use ends up distancing users from the health system, mainly due to the stigma associated with drug use."